Putin can be prosecuted for crimes of aggression — but likely not any time soon

Russia’s invasion of Ukraine is a clear violation of international law that opens the door to prosecuting Russian President Vladimir Putin down the road. The United Nations Charter prohibits aggressive use of force, and Russia has no valid claim that it is using force in self-defense. To assert self-defense, a state must be the victim of an actual or imminent armed attack. No facts support a claim that Russia is the victim of such an attack.

The ban on aggressive use of force is such a fundamental element of international law that when a state breaches it, its leaders can be held criminally responsible. After World War II, dozens of political and military leaders of Germany and Japan were convicted of the crime of aggression by international tribunals set up in Nuremberg and Tokyo.

Although the crime of aggression lay dormant during the Cold War, the Hague-based International Criminal Court (ICC) now has jurisdiction over the crime of aggression. The ICC statute defines aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

Russia’s invasion of Ukraine easily meets this definition. But ICC jurisdiction over aggression is limited to only two situations: when both the aggressor and the victim state are parties to the ICC and have specifically accepted the Court’s aggression provisions; or when the UN Security Council refers a case of aggression to the Court. Even if Ukraine were to become a state party to the ICC and accept the aggression provisions, Russia would not. Russia would also veto any attempt by the Security Council to refer the case. 

Where are international law’s teeth? How and when can the perpetrators of these crimes face justice? One powerful way is through domestic prosecution. Of course, Ukraine would have jurisdiction to prosecute perpetrators of the crime of aggression since it is the territory where the crime took place. Russia could also theoretically assert jurisdiction at some future point should there be a regime change since the planning occurred there. Both the Ukrainian and Russian criminal codes criminalize aggression.

But aggression also triggers what’s called “universal jurisdiction.” What this means is that any state in the world that criminalizes aggression in its own criminal code can prosecute the perpetrators, even without any connection to the crime. The basic principle is that states are not projecting their national laws abroad; rather, they are acting as the decentralized enforcement mechanisms of an international law that covers the globe. 

There are some limits, however. While in office, Putin and other high-ranking officials are cloaked with what’s called status-based immunity; it protects high-ranking officials against suits alleging illegal conduct while the officeholder is in office, but, importantly, the immunity lapses once the official leaves office. In addition, most states require that the perpetrator be present in their territory before proceedings can be initiated. The possibility of prosecution, however, will keep Russian officials from traveling to many states around the world after they leave office.

Anthony J. Colangelo is Robert G. Storey Fellow and a professor of law at the SMU Dedman School of Law.